Pablo Ibáñez Colomo

please note:
on leave Lent 2017

Administrative support: Mary Wells
Room: New Academic Building 5.16
Tel.  020-7955-7779

Pablo Ibáñez Colomo is Associate Professor of Law at the London School of Economics and Visiting Professor of Law at the College of Europe (Bruges). He received a Ph.D. from the European University Institute in June 2010 (Jacques Lassier Prize). Before joining the EUI as a Researcher in 2007, he taught for three years at the Law Department of the College of Europe (Bruges), where he also took an LL.M. in 2004. In 2008, Pablo spent six months as a TTLF fellow at Stanford Law School.  

Research Interests

Pablo's work focuses on competition law and economic regulation (in particular, communications regulation), and, more generally, he has an interest in the economic analysis of law. His doctoral dissertation examined how competition law, communications regulation and national media regimes overlap and influence one another. In the field of competition law, he has written on the modernisation of Article 102, on the judicial review of administrative decisions, on its interface with intellectual property and on State aid. Future projects will deal with the economic analysis of media regulation.

External Activities
  • Non-Governmental Advisor, UK Competition and Markets Authority

  • Research Fellow, Centre on Regulation in Europe

  • Visiting Professor, College of Europe (Bruges): Droit des industries de réseau

  • Visiting Lecturer, Curso de Derecho de la competencia europeo y español (Madrid)

  • co-editor of Chillin’ Competition:


European Communications Law and Technological Convergence. Deregulation, Re-regulation and Regulatory Convergence in Television and Telecommunications. (Wolters Kluwer, 2011)

This book presents a critical examination of the European regulatory reaction to technological convergence, tracing the explicit and implicit mechanisms through which emerging concerns are incorporated into regulation. It seeks to identify the patterns that underlie these responses to determine the extent to which the issues at stake, and the implications of intervention, are fully understood and considered by authorities. The focus of the analysis is placed on ‘conflict points’ – areas of overlap between regimes – the study of which has been largely neglected. The PhD thesis on which this monograph is based was awarded the 2011 Jacques Lassier Prize.

Manual de Derecho de la Competencia (with L. Ortiz Blanco, Jeronimo Maillo Gonzalez-Orus and Alfonso Lamadrid de Pablo), Tecnos, 2008

Selected articles
and chapters in books

(with Alfonso Lamadrid de Pablo) ‘On the notion of restriction of competition: what we know and what we don’t know we know’  in Damien Gerard, Massimo Merola and Bernd Meyring (eds), The Notion of Restriction of Competition: Revisiting the Foundations of Antitrust Enforcement in Europe (Bruylant 2017), [FORTHCOMING]

‘Appreciability and De Minimis in Article 102 TFEU’  Journal of European Competition Law & Practice  (2016) 7 (10)  pp.651-660

'State aid as a tool to achieve technology neutrality' (2016) European State Aid Law Quarterly 15 (3) pp.440-445

In Abertis (a representative judgment of a saga of similar cases), the General Court dismissed an action for annulment against a Commission decision finding that the measures in support for the deployment of a digital terrestrial television network in Spain amounted to unlawful and incompatible State aid. According to the Commission, the support measures were not granted in accordance with the principle of technology neutrality, insofar as they excluded technologies such as satellite. In addition, it held that the Member State could not invoke the Altmark case law, or Article 106(2) TFEU, insofar as the operators had not been entrusted with a public service mission. This is so in spite of the fact that the Spanish Telecommunications Act explicitly referred to the transmission of broadcasting signals as a service of general economic interest. The analysis of the Commission was, by and large, validated by the General Court. The appeal against the judgment, in this and in similar cases, is currently pending.

'Beyond the "More Economics-Based Approach": A Legal Perspective on Article 102 TFEU Case Law'  C.M.L. Rev. 2016, 53(3), 709-739 (first published in LSE Law Society and Economy Working Paper Series, 09-2016)

The interpretation of Article 102 TFEU by the EU courts has given rise to considerable controversy in the past decade. However, it is not always well understood. The purpose of this contribution is to uncover the rationale underpinning the case law on exclusionary practices and to provide a legal perspective on ongoing debates. An analysis of the case law reveals that some practices are deemed prima facie abusive while others are only subject to Article 102 TFEU insofar as they are likely to have an anticompetitive effect. This difference mirrors the object/effect dichotomy that is observed in the context of Article 101 TFEU. The criteria used to draw the line between abuses 'by object' and 'by effect' is also the same. Against this background, it appears that the 'frictions' observed in the case law can be understood and addressed following the principles sketched by the ECJ in Cartes Bancaires.

'EU Competition Law in the Regulated Network Industries'  LSE Law Society and Economy Working Paper Series, 08-2016

This piece considers the interface between EU competition law and the regulation of network industries. The two have been transformed as a result of their interactions. It is difficult to make sense of contemporary EU competition law without taking into account the consequences that the liberalisation process has had on it. Similarly, regulation sees EU competition law as a model and an aspiration. In this sense, the two disciplines can be said to be mutually compatible. In spite of the compatibility between EU competition law and sector-specific regulation, there is tension between them. The objectives of the two are not identical. Regulation is conceived to undermine the position of the incumbent and to introduce fragmentation. EU competition law, on the other hand, seeks to preserve the competitive constraints to which firms are subject. As a consequence of this tension, the substantive standards in EU competition law may vary to accommodate the features and demands of network industries. Finally, it appears that EU competition law and sector-specific regulation have a complementary relationship. Sectoral regimes often lack the tools to achieve their objectives. The substantive scope of regulation may be limited, or the range of measures insufficient to address all concerns. EU competition law is a versatile instrument that can remedy some of these gaps. It has proved to be an effective tool to preserve fragmentation in liberalised markets and to manage technological change.

'Article 101 TFEU and Market Integration'  (2016) 12 Journal of Competition Law & Economics [FORTHCOMING]; LSE Law Society and Economy Working Paper Series, 07-2016

Market integration is an objective of Article 101 TFEU. As a result, agreements aimed at partitioning national markets are in principle restrictive of competition by object. The case law on this point has been consistent since Consten-Grundig. Making sense of it, however, remains a challenge. The purpose of this piece is to show, first, how the methodological approach followed by the Court of Justice changes when market integration considerations are at stake. Secondly, it explains why and when restrictions on cross-border trade have been found not to restrict competition by object within the meaning of Article 101(1) TFEU.
     An agreement aimed at partitioning national markets is not as such contrary to Article 101(1) TFEU if the analysis of the counterfactual reveals that it does not restrict inter-brand and/or intra-brand competition that would have existed in its absence. It is possible to think of three scenarios in this regard: (i) an agreement may be objectively necessary to achieve the aims sought by the parties; (ii) a clause may be objectively necessary for an agreement and (iii) competition is precluded by the underlying regulatory context (as is the case, in particular, when the exercise of intellectual property rights is at stake).

'Post Danmark II: The Emergence of a Distinct 'Effects-Based' Approach to Article 102 TFEU' Journal of European Competition Law & Practice (2016) 7(2) 113-115

A system of standardised, 'all-unit' rebates implemented by a dominant firm is contrary to Article 102 TFEU if an analysis of the nature and operation of the scheme and of the features of the relevant market reveals that it is likely to have an exclusionary effect.

'Copyright Licensing and the EU Digital Single Market Strategy' LSE Law Society and Economy Working Paper Series, WPS 19-2015

In May 2015, the European Commission launched an ambitious Digital Single Market Strategy. One of the objectives of this agenda is to ensure that copyright-protected content is accessible across borders by end-users. The achievement of this goal requires the review of national copyright regimes to ease the cross-border transmission of content and the enforcement of EU competition rules. This piece explains the principles applying to the territorial licensing of copyright-protected content against the background of the Strategy and the proposals for legislative reform. As a matter of principle, it is lawful under EU competition law to grant an exclusive territorial licence to a single operator in a given Member State, and thus to prohibit the transmission of the same content by others in the territory subject to the licence. In certain circumstances, however, these agreements may be found to be contrary to Article 101(1) TFEU. The piece places an emphasis on the analysis of the Murphy case and provides the context to understand the ongoing proceedings against the ‘Big Six’ Hollywood major studios and Sky UK.

'Restrictions on Innovation in EU Competition Law' European Law Review (2016) 41 (2) pp.201-219

Reflects on the approach of EU competition law to innovation-related considerations. Examines the indirect influence of such considerations on competition law enforcement, cases illustrating how reduced competition may reduce a company's incentive to innovate, and the scope for arguing that a practice has a negative impact on innovation rates. Suggests why the direct introduction of innovation considerations to EU competition law is undesirable.

'Post Danmark II, or the Quest for Administrability and Coherence in Article 102 TFEU' LSE Law Society and Economy Working Paper Series, WPS 15-2015

The legal status of quantity rebates under Article 102 TFEU is unclear. In Post Danmark II, the ECJ has been asked to provide a substantive test to establish whether this practice amounts to an abuse of a dominant position. As the case law stands, two possible approaches can be followed. Quantity rebates can be assessed in accordance with the framework sketched by the Court in Michelin I, or they can be subject to the principles applying to other price-based strategies such as ‘margin squeeze’ abuses and selective price cuts. There are compelling reasons to follow the latter approach. The criteria set out in Michelin I were conceived for target rebates, which – unlike quantity-based schemes – are not presumptively legal under Article 102 TFEU. In addition, the said criteria are not administrable, in the sense that they do not make it possible to define in advance whether a given rebate scheme is lawful or unlawful. In practice, and in contradiction with the logic underlying Michelin I, it is sufficient for a competition authority or a claimant to identify some ‘loyalty-inducing’ features to establish an abuse. As such, they are not suitable for their application in disputes before national courts, or by national competition authorities.

'Intel and Article 102 TFEU Case Law: Making Sense of a Perpetual Controversy' Law Society and Economy Working Paper Series WPS 29-2014 December 2014

In June 2014, the General Court of the EU delivered its judgment in Intel. The debates to which it has given rise in less than six months suggest that the controversy about the legal treatment of exclusive dealing and rebates under Article 102 TFEU is still very much alive. This piece seeks to make sense of the persistence of academic and non-academic discussions around the question. It appears that the real reasons behind the contentious status of the relevant case law are more limited in their nature and scope than commonly assumed. Ongoing disagreements are merely the manifestation of what can be termed a 'friction' in the case law. If rulings like Intel (and previous ones like Michelin II and British Airways) are contested, this is so because they are difficult to reconcile with other judgments addressing the same or comparable issues. First, the case law on, respectively, article 101 and 102 TFEU is based on mutually incompatible premises. Secondly, and to the extent that there is no reason to presume that exclusivity and rebate schemes are implemented for anticompetitive purposes and/or to assume that they harm the competitive process, they would be assessed more sensibly under a standard – as 'margin squeeze' abuses and selective price cuts already are.

'Towards More Competition in Pay TV Services?' LSE Law: Policy Briefing Papers 5/2014

In January 2014, the EU Commission opened an investigation into the agreements concluded between Hollywood major studios and pay TV operators in different EU Member States. According to the EU Commission, some of the restraints included in these agreements restrict cross-border competition between broadcasters. But it is not clear whether intervention through competition law will achieve the policy objectives sought. It would seem that the absence of cross-border competition is not so much the consequence of a set of restrictive agreements but of the underlying features and dynamics of the industry.

'Discriminatory Conduct in the ICT Sector: A Legal Framework' in Gintare Surblyte (ed), Competition on the Internet – MPI Studies on Intellectual Property and Competition Law, vol 23 (Springer 2014) 63-79

Vertical access disputes are frequent in the ICT sector. Prominent cases before the European Commission, such as Google, and some regulatory debates – and in particular discussions about ‘net neutrality’ – are evidence of this. The purpose of this piece is to identify a legal framework for the assessment of unilateral discriminatory practices under competition law. Three main approaches could be considered: (1) a welfare-based approach, based alone on the economic impact of the practice on welfare; (2) an approach based on the (presumed or alleged) intent of the firm; and (3) one that seeks to achieve consistency by examining the substantive standards applying to similar practices. It is shown that the latter approach is to be preferred, as it seems to be not only sound from an conomic perspective, but in line with the purpose and logic of competition law regimes.

'The Commission Investigation into Pay TV Services: Open Questions'
Journal of European Competition Law and Practice (2014), 5(8) 531-541

In January 2014, the Commission launched an investigation into pay TV services in the context of a review of EU copyright rules and following the ruling in Murphy, where the ECJ held that exclusive territorial licensing agreements may be restrictive by object. Vice-President Almunia's statement expresses concerns with restraints limiting the passive sales of pay TV services and with the ‘portability’ of subscriptions across borders. The Commission envisions a form of cross-border competition between pay TV operators that is not easy to reconcile with the observable industry dynamics. It is not clear to what extent the suggested approach considers the ‘economic and legal context’ in which agreements between studios and broadcasters are concluded.

‘Exclusionary Discrimination under Article 102 TFEU’ Common Market Law Review (2014), 51(1) 141-163

The fact that an integrated dominant firm deals on more favourable conditions with its affiliated divisions may be abusive within the meaning of Article 102 TFEU. It is not clear when and why this is the case. It has sometimes been suggested that, as a rule, dominant firms are not entitled to favour their own activities over those of rivals. This piece shows that there is no such thing as a non-discrimination rule applying across the board, which, if anything, would run counter to the logic and purpose of competition law. A case-by-case assessment is thus justified. There are compelling reasons to expand to exclusionary discrimination the principles set out in the Guidance Paper 2008 for the assessment of refusals to deal and "margin squeeze" abuses.

‘State Aid Litigation before EU Courts (2004-2012): A Statistical Overview’ Journal of European Competition Law and Practice (2013), 4(6) 469-484

This article considers annulment actions and appeals brought by Member States, recipients, and sub-national entities since 2004. Where the Member States took part in the proceedings, Commission decisions were annulled more frequently by the General Court. Annulments were more likely where the ‘private investor test’ was raised as a ground. On appeal, selectivity-related issues are prominent; first instance judgments were rarely set aside.

'Three Shifts in EU Competition Policy: Towards Standards, Decentralization, Settlements' Maastricht Journal of European and Comparative Law (2013), 20(3), 363-385.

EU competition policy has undergone fundamental transformations over the past 20 years. The changes observed are substantive, procedural and institutional in nature. Two decades ago, EU competition policy was enforced centrally by the Commission in a way that is probably best described as traditional administrative law-making. Policy was formulated by means of formal decisions adopted in individual cases and by legislative instruments regulating firm behaviour in detail. Following the adoption of Regulation 1/2003, and as a result of the use of economic analysis, the enforcement landscape is more diverse and decentralized. National competition authorities have emerged as key players in the field (a trend that is also observed in other fields of EU economic regulation, including energy and electronic communications). Individual decisions are now crucially complemented by soft law instruments, the use of which started in the 1990s and which now permeate the whole discipline, and by negotiated procedures.

'The Law on Abuses of Dominance and the System of Judicial Remedies',  Yearbook of European Law (2013) pp.389-431

This article examines the extent to which the imperfect nature of the EU system of judicial remedies can explain the peculiar evolution of the EU law on abuses of dominance. A comprehensive analysis of competition law judgments since the 1960s suggests that the procedural avenue through which a case reaches the General Court and the European Court of Justice has a significant impact on the outcome of individual cases and, over time, on the very substance of Treaty provisions. It is submitted that some of the distinct features of the case law on Article 102 TFEU – lack of consistency, legal uncertainty, judicial restraint – are the consequence of the fact that the scope of the notion of abuse has been defined in the context of annulment actions against Commission decisions, as opposed to preliminary references submitted by national courts in accordance with Article 267 TFEU. This conclusion is tested against the evolution of Article 101 TFEU and Article 2 of the successive Merger Regulations.

'Market failures, transaction costs and article 101(1) TFEU case law' European Law Review 2012, 37(5), 541-562.

EU competition law is increasingly informed by economic analysis. However, the tools of this discipline are rarely ever used systematically for positive purposes. This article gives a unifying picture of art.101(1) TFEU judgments based on familiar economic concepts (market failures and transaction costs). It is submitted that a formalisation of case law based on these concepts has greater explanatory power than the prevailing approaches currently found in textbooks and policy instruments. The article shows, first, that the availability of an efficiency explanation for an agreement is the default starting point followed by EU courts when drawing the line between restrictions of competition by object and by effect. Secondly, it explores how market failures and transaction costs influence the analysis of restrictive effects on competition under art.101(1) TFEU . These insights are equally useful to define the scope of art.101(3) TFEU and the relevance of non-economic considerations.

‘De minimis rule in competition law: An overview of EU and national case law’ (with Inge Govaere), e-Competitions Special Issue, April 2012

'Rules of purely sporting interest and EU competition law: why the Wouters exception is not necessary'  Competition Law International 2012, 8(1), 54-58

Questions the necessity of the approach adopted by the European Court of Justice ruling in Wouters v Algemene Raad van de Nederlandse Orde van Advocaten (C-309/99) in formulating an activity-specific exception to justify sporting rules and arrangements entered into by sports governing bodies that would otherwise have been found to restrict competition by analysing the economics of sporting activities and competition rules. Considers whether it is possible to distinguish between economic and non-economic rules in a sports context.

'On the application of competition law as regulation: elements for a theory' Yearbook of European Law (2010), 29 261-306

'Judicial review in Article 102' (with Jean-Yves Art) in Federico Etro and Ioannis Kokkoris (eds), Competition Law and the Enforcement of Article 102 (OUP 2010)

'The Future of Communications Regulation after Ofcom's Pay-TV consultation', Utilities Law Review  2010, 18(3), 99-107.

Examines the implications of Ofcom's decision to allow premium sports channels operated by BSkyB the same access obligations applied to the "local loop" owned by BT. Examines when an ex ante intervention is justified in the communications markets, focusing on the rationale behind the EU regulatory framework for electronic communications networks and services and the unintended effects of ex ante intervention. Considers the legal basis for Ofcom's intervention under the Communications Act 2003 s.316 and its approach to assessing anti-competitive conduct. Reviews the definition of "fair and effective" competition.

'Evolving Priorities and Rising standards: Spanish Law on Abuses of Market Power in the Light of the 2008 Guidance Paper' (with Luis Ortiz Blanco), in Lorenzo Pace (ed.), European Competition Law: The Impact Of The Commission’s Guidance On Article 102, Edward Elgar, 2011

'Article 82 EC as a “built-in” remedy in the system of Intellectual Property: the example of supplementary protection for pharmaceuticals in Italy', in Intellectual Property, Market Power and the Public Interest (2008), Peter Lang, pp. 119-142

'The most appropriate tool for a better targeted State aid policy' (co-author), in Economic Analysis of State Aid Rules - Contributions and Limits (2007), Lexxion, pp. 29-67

'Selectivity, Economic Advantage, Distortion of Competition and Effect on Trade' (co-author), in Economic Analysis of State Aid Rules - Contributions and Limits (2007), Lexxion, pp. 119-155

'Annotation on Case C-171/05 P, Laurent Piau, (with Denis Waelbroeck)Common Market Law Review (2006), vol. 43, n. 6, pp. 1743-1756

'Recent Developments on the Invocability of WTO Law in the EC: A Wave of Mutilation', European Foreign Affairs Review (2006), vol. 11, n.1, pp. 63-86

'The Revival of Antitrust Law in Argentina: Policy or Politics?', European Competition Law Review (2006) vol. 27, n.6, pp. 317-323